Withdrawal Agreement: Legal Position

Christopher Chope Excerpts

Monday 3rd December 2018 Commons Chamber

[Sir Christopher Chope (Christchurch) (Con)]

My right hon. and learned Friend told my right hon. Friend the Member for Preseli Pembrokeshire (Stephen Crabb) that the European Union is refusing to allow a get-out clause on the permanent backstop, but he has also told us that he does not believe that the permanent backstop is sound in European Union law. Can this matter be resolved by a reference to the European Court of Justice in the same way that the European Court of Justice gave its opinion in relation to the relevance of the Lisbon treaty requirement that the EU should sign up to the European convention on human rights? When it gave its opinion on that, it said that it did not think it was compatible with the EU treaties, despite the fact that it had been signed up to in that particular treaty. Can something similar be done in this case to remove the uncertainty?

[The Attorney General]

There is nothing to prevent a case from being brought to the Court of Justice of the European Union on whether any agreement that is signed by the European Union is compatible with the treaties. But I would point out that, as I said earlier, the time at which the backstop becomes legally vulnerable, or most legally vulnerable, is the time at which it becomes, de facto, not simply temporary but permanent. It is at that point that the problem may crystallise in connection with the use of article 50 to conclude this agreement. The legal uncertainty about knowing whether the backstop would survive such a challenge is one of the factors, I believe, that will impel the European Union to conclude an arrangement with us in expeditious time.